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Activity 27: Organizational Conflicts of Interest Examining Potential Or Actual Conflicts on the Basis of the Particular Facts and the Nature of the Proposed Contract

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Activity 27: Organizational Conflicts of Interest Examining Potential Or Actual Conflicts on the Basis of the Particular Facts and the Nature of the Proposed Contract Contract Formation Activity 27: Organizational Conflicts of Interest Examining potential or actual conflicts on the basis of the particular facts and the nature of the proposed contract. Related Flow Charts: Flow Chart 27 Related Courses: CLC 132: Organizational Conflicts of Interest Tasks FAR Reference(s) Additional Information 1. Determine whether a possible FAR 2.101 Definitions [organizational Organizational conflict of interest means— organizational conflict of interest conflict of interest]. that because of other activities or relationships with other (OCI) exists. FAR 9.502 Applicability. persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage. An organizational conflict of interest may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition. In the latter case, some restrictions on future activities of the contractor may be required. OCIs are more likely to occur in contracts involving— Management support services; Consultant or other professional services; Contractor performance of or assistance in technical evaluations; or Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production. FEDERAL ACQUISITION INSTITUTE | Contracting Professionals Smart Guide | Contract Formation | Organizational Conflicts of Interest 1 Tasks FAR Reference(s) Additional Information Each individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and the development of an appropriate means for resolving it. 2. If information concerning FAR 9.506 Procedures. Government sources include the files and the knowledge of personnel prospective contractors is within the contracting office, other contracting offices, the cognizant necessary to identify potential contract administration and audit activities and offices concerned with organizational conflicts of interest contract financing. Non-Government sources include publications and (OCI), seek information from within commercial services, such as credit rating services, trade and financial the Government or from other journals, and business directories and registers. readily available sources. 3. Before issuing the solicitation, FAR 9.506(b) Procedures. If it is determined that a particular acquisition involves a significant prepare written analysis on potential organizational conflict of interest, before issuing the recommended course of action. solicitation, submit for approval to the chief of the contracting office (unless a higher level official is designated by the agency)— A written analysis, including a recommended course of action for avoiding, neutralizing, or mitigating the conflict, based on the general rules in FAR 9.505 or on another basis not expressly stated in that section; A draft solicitation provision (see FAR 9.507-1); and If appropriate, a proposed contract clause (see FAR 9.507-2). 4. Obtain approval on course of action FAR 9.506(b) Procedures. The approving official must— from higher level official. Review the contracting officer’s analysis and recommended course of action, including the draft provision and any proposed clause; Consider the benefits and detriments to the Government and prospective contractors; and Approve, modify, or reject the recommendations in writing. FEDERAL ACQUISITION INSTITUTE | Contracting Professionals Smart Guide | Contract Formation | Organizational Conflicts of Interest 2 Tasks FAR Reference(s) Additional Information 5. Include the approved provision(s) FAR 9.506(b) Procedures. Affected solicitations must contain a provision that— and any approved clause(s) in the FAR 9.507-1 Solicitation provisions. Invites offerors’ attention to this subpart; solicitation or the contract, or both. FAR 9.507-2 Contract clause. States the nature of the potential conflict as seen by the contracting officer; States the nature of the proposed restraint upon future contractor activities; and Depending on the nature of the acquisition, states whether or not the terms of any proposed clause and the application of this subpart to the contract are subject to negotiation. If, as a condition of award, the contractor’s eligibility for future prime contract or subcontract awards will be restricted or the contractor must agree to some other restraint, the solicitation must contain a proposed clause that specifies both the nature and duration of the proposed restraint. 6. If a conflict of interest is FAR 9.504 Contracting officer The contracting officer must award the contract to the apparent determined to exist that cannot be responsibilities. successful offeror unless a conflict of interest is determined to exist that avoided or mitigated, notify the cannot be avoided or mitigated. contractor and allow a responsible opportunity to respond. 7. Determine whether it is in the best FAR 9.504 Contracting officer If the contracting officer finds that it is in the best interest of the United interests of the United States to responsibilities. States to award the contract notwithstanding a conflict of interest, a award notwithstanding the conflict. request for waiver. 8. Request a waiver. FAR 9.503 Waiver. The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest. Any request for waiver must be in writing, set forth the extent of the conflict, and require approval by the agency head or a designee. Agency heads cannot delegate waiver authority below the level of head of a contracting activity. 9. Include the waiver and decision in FAR 9.504 Contracting officer The waiver request and decision must be included in the contract file. the contract file. responsibilities. FEDERAL ACQUISITION INSTITUTE | Contracting Professionals Smart Guide | Contract Formation | Organizational Conflicts of Interest 3 Tasks FAR Reference(s) Additional Information 10. Resolve the conflict, if possible. FAR 9.506 Procedures [resolving Before awarding the contract, the contracting officer must resolve the potential conflicts]. conflict or potential conflict. FEDERAL ACQUISITION INSTITUTE | Contracting Professionals Smart Guide | Contract Formation | Organizational Conflicts of Interest 4 .
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